Racial Discrimination at Work

Section 9 of the Equality Act 2010 covers the protected characteristic of Race. Race for the purpose of the Equality Act includes colour, nationality and ethnic or national origins.^[1]

Discrimination on the basis of caste is not yet included in the legislation. Although it is fully expected to be included in the future legislative progress is very slow.^[2]

There are four forms of discrimination which are described in greater detail below.

Direct Discrimination

This describes the situation in which someone is treated less favourably because of their actual or perceived race, or the race of someone with whom they associate. The intention of the employer is irrelevant. In other words an employee might have a case against their employer regardless of whether they meant to discriminate against them.

Example

An employer employs a black waiter in his restaurant business. After a threat from a customer that he will stop eating in the restaurant if the black employee continues to work there the employer dismisses the worker. This is clearly direct discrimination because the employee has been dismissed on account of his race.

Indirect Discrimination

This describes the situation where there is a policy, practice or procedure which applies to all workers, but particularly disadvantages people of a particular race.

Example

An employer advertises a job vacancy requiring that all candidates possess at least 4 GCSE’s A-C grade. This is indirect discrimination because people of different national origins may posses different qualifications. An advert would need to include the words ‘or equivalent’ when specifying academic qualifications in order to avoid accusations of indirect discrimination.

Harassment

This is unwanted conduct related to race which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The EHRC’s Employment Code of Practice describes the following as examples of harassment: spoken or written words; abuse; imagery, graffiti or physical behaviour.

Example

An employee works in a customer facing role and is regularly subjected to racist insults by customers. The management of the company does nothing to protect the employee from this kind of harassment and tell her that she should just try to ignore them. The employee could present a claim for harassment even though the abuse is coming from the customers not the employer. This is third party harassment and providing that it has happened on at least two previous occasions then the employer would be liable for the discrimination.

An employee need not make their objections known at the time of the harassment for it to be considered unwanted. Equally the harassment need not necessarily have been directed at the employee who complains of the unwanted conduct.

Victimisation

This describes the situation in which an employee is subjected to a detriment (treated unfavourably) because they have done, or may do a protected act. A protected act is bringing proceedings under the Equality Act 2010, giving evidence or information in connection with proceedings or making an allegation that someone has contravened the act. This means that an employee whom makes a complaint to his employer that he has suffered racial discrimination or harassment must not be treated less favourably because of that complaint. For example denying a promotion to someone who has made an allegation and describing them as a trouble causer.